Rokes v. Rokes, 55 N.C. App. 397 (1982)

Jan. 5, 1982 · North Carolina Court of Appeals · No. 8125DC356

55 N.C. App. 397

JUDITH T. ROKES v. DAVID K. ROKES

No. 8125DC356

(Filed 5 January 1982)

Appeal and Error § 6.6— denial oi motion to dismiss —no immediate appeal

Defendant had no right of immediate appeal from the denial of his Rule 12(b)(6) motion to dismiss plaintiffs claim for permanent alimony.

APPEAL by defendant from Crotty, Judge. Order entered 24 April 1980 in District Court, CATAWBA County. Heard in the Court of Appeals on 16 November 1981.

This is a civil action wherein plaintiff seeks permanent alimony, attorney’s fees, and custody and support of the minor children. On 5 September 1979 the defendant filed answer denying the material allegations of plaintiff’s claim for permanent alimony, child support, and attorney’s fees, and filed a counterclaim for absolute divorce. Plaintiff filed a motion and notice of hearing for “Temporary Alimony and Child Support.” On 24 April 1980, after a hearing on plaintiff’s motion, the trial court entered a “Temporary Order” denying plaintiffs motion for alimony pendente lite; denying defendant’s motion to dismiss plaintiff’s claim for permanent alimony; awarding plaintiff custody of the children, with visitation privileges for the defendant; ordering defendant to contribute to the support of the children; and ordering defendant to pay “partial attorney’s fees.”

Defendant gave notice of appeal on 6 October 1980.

Rudisill & Brackett, by J. Richardson Rudisill, Jr., for plaintiff appellee.

Sigmon & Sigmon, by W. Gene Sigmon, for defendant appellant.

HEDRICK, Judge.

Defendant has no right of immediate appeal from the denial of his Rule 12(b)(6) motion to dismiss plaintiff’s claim for permanent alimony. This is another attempt to appeal from a “Temporary Order.” Insofar as the record discloses, plaintiff’s claims for permanent alimony and counsel fees, and defendant’s claim for absolute divorce, are still pending in the district court. Thus, defendant’s appeal from the “Temporary Order” is subject to dismissal as being premature. See Stephenson v. Stephenson, 55 N.C. App. 250, 285 S.E. 2d 281 (1981).

We note defendant’s notice of appeal was not given within ten days of the entry of the order appealed from. Thus this Court has no jurisdiction to hear the appeal. G.S. § 1-279.

The appeal is

Dismissed.

Chief Judge MORRIS and Judge MARTIN (Robert M.) concur.